JMD Roofing & Siding, LLC
Late contest dismissed after employer stopped participating
Apply this to your situation
This order from 2016 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA issued JMD Roofing & Siding several serious and other-than-serious construction citations with proposed penalties totaling $8,400. The company received the citation and was told in Spanish how and when to contest it, but filed its notice about six weeks after the deadline. It later stopped responding to OSHA and the judge and did not provide updated contact information. The judge found that the company abandoned its contest, failed to show excusable neglect, and did not identify a meritorious defense. The late contest was dismissed, leaving the citation and $8,400 proposed penalty as a final Commission order.
Decision snapshot
- Cited standard(s): No specific OSHA standard number is identified in the decision.
- Outcome: Late notice of contest dismissed; the citation and $8,400 proposed penalty became final.
- Key point: An employer that files late must justify the delay, and failing to participate or maintain current contact information can result in default and dismissal.
Full text (OSHRC public release)
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 15-0516
JMD ROOFING & SIDING, LLC,
Respondent.
ORDER DISMISSING RESPONDENT’S
LATE NOTICE OF CONTEST
This matter is before the Occupational Safety and Health Review Commission
(Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651, et sec. (the Act). On October 21, 2015, Complainant, the Secretary of Labor
(Secretary), filed a Motion to dismiss Respondent’s late notice of contest, together with a
supporting memorandum of law, and attachments (Motion). On January 4, 2016, the Secretary
filed a Supplemental Memorandum to the Motion to dismiss (Supplemental Memo). On
January 15, 2016, the Secretary filed a Supplemental Motion to dismiss Respondent’s late
notice of contest, together with a revised supporting memorandum of law, and additional
attachments (Supplemental Motion). The Secretary’s Motion and Supplemental Motion
request that Respondent’s late notice of contest be dismissed and that the citation and penalty
issued to Respondent in this case be affirmed by operation of law as a final order of the
Commission. Respondent did not respond to the Secretary’s Motion, Supplemental Memo, or
Supplemental Motion.
A Notice of Hearing issued in this case on November 23, 2015. An Order issued on
January 12, 2016. Respondent did not respond to the Hearing Notice or Order.
1
Respondent’s late notice of contest letter was received by and docketed with the
Commission on March 30 and 31, 2015, respectively.
For the reasons set forth below, Respondent’s notice of contest is dismissed.
Background1
The Albany, New York, Area Office of the Occupational Safety and Health Administration
(OSHA) inspected Respondent’s job site, located at 9 Delta Place, Kingston, NY 12401, on
September 24, 2014. The inspection number is 996663. On November 3, 2014, OSHA issued to
Respondent a five item serious citation, with subparts, and a one item other-than-serious
citation and notification of penalty (citation). The citation alleged violations of OSHA’s
construction standards, including standards regarding job site inspections, personal protective
equipment, fall protection, fall protection training, portable ladders, ladder training, and first
aid supplies, among others. The total penalty proposed was $8,400.00. The citation stated that
unless Respondent informed the OSHA Area Director in writing of Respondent’s intention to
contest the citation and / or proposed penalties, within 15 working days after receipt, the
citation and the proposed penalties would become a final order of the Commission. The
citation was written in English.
On November 4, 2014, OSHA served the citation by USPS certified mail, return receipt
requested, to Respondent’s address listed on the citation: JMD Roofing & Siding, LLC, 36
Oakland Avenue, Danbury, CT 06810. The USPS Tracking form reveals that notice of the
1
The background is based on the citations and on the other exhibits attached to the Secretary’s Supplemental
Motion. These include the November 2014 USPS Tracking form, the returned envelope containing the citations
marked “unclaimed,” the December 2014 UPS shipment receipt and delivery notification, the January 2015 UPS
delivery notification, the Declaration of Rita Young, Assistant Area Director OSHA Albany Area Office, Respondent’s
handwritten late notice of contest dated March 17, 2015, postmarked March 19, 2015, marked received March 23,
2015, and the late notice of contest hand addressed envelope.
The Secretary’s October 2015 Motion and January 2016 Supplemental Memo did not include a complete
description of the Secretary’s communications and attempted communications with Respondent nor did they
include the complete set of supporting exhibits attached to the January 2016 Supplemental Motion. The
Secretary’s October 2015 Motion and January 2016 Supplemental Memo read alone are incomplete. Therefore,
greater weight has been given to the Secretary’s January 2016 Supplemental Motion.
As Respondent has not responded to the many attempts by the Secretary and by the undersigned Judge
to communicate with Respondent, in writing and by telephone, the representations made in the Secretary’s
January 2016 Supplemental Motion, for the purpose of this Order, are regarded as uncontested.
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correspondence from OSHA was left for Respondent on November 7, 2014, but there was “no
authorized recipient available.” USPS Tracking further reveals that on November 25, 2014, the
OSHA correspondence was noted as “undeliverable as addressed,” and “unclaimed / max hold
time expired.” The envelope for the unclaimed citation that was returned to the OSHA Area
Office was marked “Returned to sender. Unclaimed. Unable to Forward.” The handwritten
note “ext.” was added to the street address to read: “36 Oakland Ave. ext.” (Supplemental
Motion Exs. B, C, D).
On December 11, 2014, OSHA again sent the citation to Respondent by United Parcel
Service (UPS) 2nd day air delivery to Respondent’s address listed on the citation, including the
name of Respondent’s owner: JMD Roofing & Siding, LLC, Jorge Tacuri, 36 Oakland Avenue,
Danbury, CT 06810. UPS delivery notification indicates that the citation was delivered on
December 17, 2014, signed by “Tacuri.” (Supplemental Motion Exs. E, F).
The memorandum of law supporting the Secretary’s January 2016 Supplemental Motion
states, at page 3, that OSHA called Mr. Tacuri, on January 13, 2015. Mr. Tacuri stated that he
did not receive the citation. Mr. Tacuri informed OSHA that his address was 36 Oakland Ave.,
Ext., Danbury, CT 06810.
On January 13, 2015, OSHA once again sent the citation to Respondent by UPS 2 nd day
air delivery to Respondent’s address, adding “ext.” to the street address, and modifying the zip
code, as follows: JMD Roofing & Siding, LLC, 36 Oakland Ave. Ext., Danbury, CT 06811. UPS
delivery notification indicates that the citation was delivered on January 14, 2015, noting “met
customer man.” (Supplemental Motion Ex. G).
Shortly thereafter, Respondent participated in an OSHA informal conference. On
January 29, 2015, Respondent’s owner Jorge Tacuri attended an informal conference regarding
the citation, held at the OSHA Albany Area Office, with Assistant Area Director Rita Young. Ms.
Young is a native Spanish speaker and all of her communications with Jorge Tacuri and with his
wife, Maria Tacuri, have been in Spanish. During the informal conference, Assistant Area
Director Young explained to Mr. Tacuri, in Spanish, that Respondent could contest the citation
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by sending a notice of contest letter to the OSHA Albany Area Office by February 5, 20152. Mr.
Tacuri nodded after the notice of contest method and deadline were explained to him.
(Supplemental Motion Ex. H).
On March 23, 2015, the OSHA Albany Area Office received a handwritten late notice of
contest letter, dated March 17, 2015, regarding the citation issued in case number 996663,
from Respondent’s owner Jorge Tacuri. The notice of contest envelope is postmarked March
19, 2015. The notice of contest envelope, handwritten return address, reads: JMD Roofing
Siding, 36 Oakland Av. Ext., Danbury, CT 06810. As translated by Ms. Young, the late notice of
contest states:
Hello, I am Jorge Tacori. I want to contest the case number 996663 toward company
JMD Roofing and Siding. I’m the owner of the company.
(Supplemental Motion Ex. I).
Thereafter, on April 10, 2015, Assistant Area Director Young and Respondent’s owner
Mr. Tacuri reached agreement in principal to settle the citation. That day, April 10th,
Respondent advised Ms. Young that Respondent was moving to a new address. At that time,
Ms. Young did not learn Respondent’s new address. (Supplemental Motion Ex. H).
The stipulated settlement agreement was drafted. On April 30, 2015, Assistant Area
Director Young called Mr. Tacuri at the phone number she had previously used to reach him.
Ms. Young left a voice mail message for Mr. Tacuri advising him that the stipulated settlement
agreement had been prepared and requesting Respondent’s new address so that the
settlement agreement could be mailed to Respondent. Mr. Tacuri did not respond to Ms.
Young’s voice mail message. (Supplemental Motion Ex. H).
Since that time, Assistant Area Director Young attempted to contact Respondent
regarding the citation numerous times. The last time Ms. Young spoke to Mr. Tacuri was on
April 10, 2015. Ms. Young was unsuccessful in her attempts to learn Respondent’s new
address. (Supplemental Motion Ex. H).
2
February 5, 2015 is fifteen working days following Respondent’s receipt of the citation on January 14, 2015, as
reflected on the UPS delivery notification. (Supplemental Motion Ex. G).
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Assistant Area Director Young attempted to call Mr. Tacuri on May 27, 2015. On June 2,
2015, Ms. Young called Mr. Tacuri, but at that time Mr. Tacuri’s phone was no longer accepting
voice mail messages. That date, June 2, 2015, Ms. Young also called Mrs. Maria Tacuri, at her
phone number, and left a voice mail message. On June 4, 2015, Mrs. Tacuri returned Ms.
Young’s voice mail message. Ms. Young emphasized to Mrs. Tacuri the importance of Mr.
Tacuri returning Ms. Young’s phone calls. On June 9, 2015, Assistant Area Director Young called
both Mr. Tacuri and Mrs. Tacuri, but she was unable to reach either person. Ms. Young
attempted to call Mr. Tacuri on July 15 and July 16, 2015, but was unable to reach him. At that
time, Mr. Tacuri’s phone was no longer accepting voice mail messages. (Supplemental Motion
Ex. H).
Procedural Status Before the Commission
Respondent’s late notice of contest letter was received by and docketed with the
Commission on March 30 and 31, 2015, respectively.
The Secretary filed a Motion for an extension of time to plead or otherwise move, on
April 2, 2015, noting that this case involved an apparent late notice of contest. By Order, dated
April 17, 2015, an extension of time to June 4, 2015 was granted. Both the Motion and Order
were served on Respondent, by first class mail, to the address set forth on the citation. The
Order was returned, unopened, to the Commission, with the postal marking: “Return to Sender.
Not Deliverable as Addressed. Unable to Forward.”
The settlement was reported to the Commission, via email notification from the
Secretary, on June 1, 2015.
The Secretary filed a second Motion for an extension of time to plead or otherwise
move, on July 29, 2015. The Motion noted that the Secretary reported this case as settled on
June 1, 2015. Motion further advised, in part:
The OSHA Area Office has left several telephone messages for Respondent in an effort
to get him to execute the Stipulated Settlement Agreement, which the parties agreed
to. As of today, the Respondent has not returned any of their telephone calls or the
executed Settlement. As a result, the Secretary requests that this matter be returned to
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the Court’s trial calendar and that he be granted additional time to analyze this matter
in order to determine its suitability for litigation.
A representative of the Secretary contacted Mr. Jorge Tacori (sic) in order to determine
if he would consent to the Motion or sign the Stipulated Settlement and return it to our
office and he advised us he only speaks “Spanish.” As a result, a representative of the
Secretary, who speaks Spanish, attempted to contact Mr. Tacori (sic) twice but he did
not answer his telephone so voice mail messages were left. As of the filing of this
Motion, we have not yet heard back from Mr. Tacori (sic).
By Order, dated August 14, 2015, an extension of time to August 21, 2015 was granted.
Both the Motion and Order were served on Respondent, by first class mail, to Respondent’s
address set forth on the citation.
The Secretary filed a third Motion for an extension of time to plead or otherwise move,
on October 5, 2015, to determine if this matter is suitable for litigation. By Order, dated
October 19, 2015, an extension of time to October 23, 2015 was granted. Both the Motion and
Order were served on Respondent, by first class mail, to Respondent’s address set forth on the
citation.
On October 21, 2015, the Secretary filed a Motion to dismiss Respondent’s late notice of
contest, together with a supporting memorandum of law, and attachments, requesting that
Respondent’s late notice of contest be dismissed and that the citation and penalty be affirmed
by operation of law as a final order of the Commission. The Secretary’s October 2015 Motion
was incomplete and did not present a full description of the communications between the
Secretary and Respondent.3 A Certificate of Service accompanied the Secretary’s Motion,
indicating service on Respondent by first class mail, as follows: Jorge Tacori, 36 Oakland Avenue
Ext., Danbury, CT 06811. Respondent did not respond to the Secretary’s Motion within the
time specified by Commission Rule 40(c), 29 C.F.R. § 2200.40(c).
On November 23, 2015, a Notice of Hearing issued scheduling a hearing in this matter
for January 26, 2016, concerning the relevant circumstances surrounding Respondent’s failure
to file a timely notice of contest and whether or not Respondent’s late filing may be accepted.
3
See note 1 above.
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The Hearing Notice also scheduled a prehearing conference call for January 5, 2016 at 9:30 a.m.
The Hearing Notice advised all parties that failure to comply with the Order may result in
appropriate sanctions, including dismissal of claims or defenses. See Commission Rule 101; 29
C.F.R. § 2200.101. The Hearing Notice advised Respondent where the Commission Rules,
written in Spanish, were located on the Occupational Safety and Health Review Commission
website: www.oshrc.gov/→Publicaciones En Espanol. See Hearing Notice p. 3, n.2. The Hearing
Notice was translated into Spanish and served in Spanish and English. The Hearing Notice was
served on Respondent by first class mail and by certified mail return receipt requested to
Respondent’s address set forth on the citation. Both the first class mail and certified mail
envelopes were returned to the Commission, undelivered, with the postal marking “Return to
Sender. No Such Number. Unable to Forward.”4
As the prehearing conference call was scheduled for January 5, 2016, the day before, on
January 4, 2016, the undersigned Judge’s legal assistant attempted to call Respondent’s owner
Mr. Tacuri regarding the scheduled conference call. Mr. Tacuri’s home and cell phone numbers
were received by the Judge’s legal assistant from the Secretary. When the home number was
first called, a woman answered the phone and stated no one by the name of Mr. Jorge Tacuri
was there. When the home number was called a second time, the call went straight to voice
mail and the legal assistant left a message for Mr. Tacuri. When Mr. Tacuri’s cell phone was
called a recorded message announced that the voice mail box was full. The undersigned’s
office never received a phone call from Mr. Tacuri in response to the voice mail message left on
his home phone.
On January 4, 2016, the Secretary filed a Supplemental Memorandum to the Motion to
dismiss Respondent’s late notice of contest. The Supplemental Memo in summary fashion
advised that an OSHA investigator, who is fluent in Spanish, had made numerous attempts to
contact Respondent; however, Respondent had been entirely unresponsive to OSHA. The
Secretary’s January Supplemental Memo was incomplete and did not present a full description
4
An internet query disclosed the address for Respondent’s registered agent as Jorge Daniel M. Tacuri, 36 Oakland
Ave, Danbury, CT 06810. The address set forth on the citation. See https://www.statelog.com/jmd-roofing-and-
siding-llc- danbury-ct. (Visited on December 3, 2015).
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of the communications between the Secretary and Respondent.5 A Certificate of Service
accompanied the Secretary’s Supplemental Memo indicating service on Respondent by first
class regular mail at: Jorge Tacuri, JMD Roofing & Siding LLC, 36 Oakland Avenue Ext., Danbury,
CT 06810.
On January 5, 2016 a brief prehearing conference call was held. Counsel for the
Secretary participated. No one from Respondent joined the call. Counsel for the Secretary
advised that the Secretary recently had been unable to contact Respondent by telephone. The
Secretary understood that Respondent had changed its address, but Respondent’s new address
was unknown to the Secretary.
On January 12, 2016, an Order issued cancelling the scheduled January 26, 2016
hearing. The Secretary was asked to carefully review the October 2015 Motion, the January
2016 Supporting Memorandum, and attachments, filed in this case, for accuracy and
completeness. The Secretary was given an opportunity to file a Supplemental Motion, including
any relevant affidavits, in this case. A copy of the November 23, 2015, Notice of Hearing was
attached to the Order. The Order was translated into Spanish and served in Spanish and
English. The Order was served on Respondent by first class mail and by certified mail return
receipt requested to Respondent’s address: Jorge Tacori, JMD Roofing & Siding, LLC, 36 Oakland
Avenue Extension, Danbury, CT 06810. The certified mail envelope was returned to the
Commission, undelivered, with the postal marking “Return to Sender. Unclaimed. Unable to
Forward.” USPS Tracking further notes “Undeliverable as Addressed.” The first class mail
envelope was not returned.
On January 15, 2016, the Secretary filed a Supplemental Motion to dismiss
Respondent’s late notice of contest, together with a supporting memorandum of law, and
attachments, requesting that Respondent’s late notice of contest be dismissed and that the
citation and penalty be affirmed by operation of law as a final order of the Commission. A
Certificate of Service accompanied the Secretary’s Motion, indicating service on Respondent by
first class mail, as follows: Jorge Tacuri, 36 Oakland Avenue Ext., Danbury, CT 06811.
5
See note 1 above.
8
Respondent did not respond to the Secretary’s Supplemental Motion within the time specified
by Commission Rule 40(c), 29 C.F.R. § 2200.40(c).
Discussion
Abandonment of Notice of Contest
On January 14, 2015 the citation in this case was delivered to Respondent by UPS 2 nd
day air delivery to: JMD Roofing & Siding, LLC, 36 Oakland Ave. Ext., Danbury, CT 06811. The
record discloses and I find that Respondent received the citation on January 14, 2015. Shortly
thereafter, Respondent’s owner Mr. Tacuri participated in an informal conference with OSHA
Assistant Area Director Young on January 29, 2015. The informal conference was conducted in
Spanish. Mr. Tacuri was advised of the notice of contest method and the February 5, 2015
notice of contest deadline.
Respondent’s handwritten late notice of contest regarding the citation is dated March
17, 2015. It was received by the OSHA Albany Area Office on March 23, 2015. The envelope
containing the late notice of contest was postmarked March 19, 2015. The notice of contest
envelope, handwritten return address, reads: JMD Roofing Siding, 36 Oakland Av. Ext., Danbury,
CT 06810. Respondent’s late notice of contest was docketed with the Commission on March
31, 2015.
Thereafter, on April 10, 2015, during a telephone conversation, Respondent’s owner,
Mr. Tacuri advised OSHA Assistant Area Director Young that Respondent was moving to a new
address. Despite numerous attempts by the OSHA Albany Area Office to communicate with
Respondent, in writing to Respondent’s known address, and by telephone to Respondent’s
owner Jorge Tacuri and to his wife Maria Tacuri, Respondent has been completely
unresponsive. Assistant Area Director Young’s telephone communications with Mr. Tacuri and
his wife were in Spanish. Likewise, efforts by the undersigned Judge to communicate with
Respondent, in writing and by telephone, have been unsuccessful.
Commission Rule 6 requires that every party, including self-represented employers,
advise the Commission Judge and all other parties to the proceeding of their current contact
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information and promptly advise the Judge and all other parties of any change to their contact
information. Commission Rule 6 “Record address” states:
Every pleading or document filed by any party or intervenor shall contain the name,
current address and telephone number of his representative or, if he has no
representative, his own name, current address and telephone number. Any change in
such information shall be communicated promptly in writing to the Judge, or the
Executive Secretary if no Judge has been assigned, and to all other parties and
intervenors. A party or intervenor who fails to furnish such information shall be
deemed to have waived his right to notice and service under these rules.
29 C.F.R. § 2200.6.
Respondent’s owner, Jorge Tacuri, has not returned voice mail messages regarding this
case left by the OSHA Assistant Area Director and by the undersigned Judge’s legal assistant.
Respondent has not provided the undersigned Judge or the Secretary, OSHA’s representative, a
party to this proceeding, with Respondent’s current mailing address. Therefore, pursuant to
Commission Rule 6, Respondent is deemed to have waived his right to notice and service under
the rules. Respondent’s actions reveal that Respondent has abandoned its notice of contest in
this case.
A Commission Judge has broad discretion to impose sanctions for noncompliance with
the Commission’s Rules or Orders issued by the Judge. See Commission Rule 101(a); 29 C.F.R. §
2200.101(a). Sealtite Corp., 15 BNA OSHC 1130, 1136 (No. 88-1431, 1991).
The record in this case reveals that Respondent is aware of these proceedings.
Respondent met with the OSHA Assistant Area Director for an informal conference to discuss
the citation on January 29, 2015. Respondent wrote and filed the late notice of contest letter
with the OSHA Albany Area Office. The late notice of contest envelope is postmarked March
19, 2015. Thereafter, the record reveals that Respondent abandoned its notice of contest.
After April 10, 2015, Respondent failed to participate in this proceeding, despite
numerous efforts on the part of the Secretary and the undersigned Judge to promote his
participation and elicit his response. These efforts include telephone calls and voice mail
messages. Notably, Assistant Area Director Young’s informal conference and later telephone
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communications with Respondent were in Spanish. These efforts also include several written
Motions filed by the Secretary and a Hearing Notice and Order issued by the undersigned
Judge. The Hearing Notice and Order were translated into Spanish and served on Respondent
in English and Spanish. Notably the January 12, 2016 Order, which included a copy of the
November 2015 Hearing Notice, was served to Respondent’s return address, as handwritten on
the envelope containing Respondent’s late notice of contest.
The facts of this case present a question whether Respondent received any of the
written communications mailed to Respondent after April 10, 2015, when Mr. Tacuri told
Assistant Area Director Young that Respondent was moving to a new address. Importantly, the
facts also disclose that Respondent failed to respond to OSHA’s numerous telephone inquiries,
in Spanish, to obtain Respondent’s new address.
Respondent’s consistent failure to participate or respond in this case indicates
Respondent’s lack of interest in pursuing its notice of contest and reveals a pattern of disregard
for Commission proceedings. See Architectural Glass & Metal Co., 19 BNA OSHC 1546, 1547
(No. 00-0389, 2001).
I find that Respondent has been given proper notice of this proceeding and the
opportunity to participate. I find that Respondent has failed to participate in this proceeding
and abandoned Respondent’s notice of contest. I find Respondent in default.
Untimely Filed Notice of Contest
Positions of the Parties
The Secretary’s Supplemental Motion contends that the citation should be affirmed as a
final order of the Commission because: (1) Respondent did not timely file its notice of contest,
(2) OSHA’s service of the citation, on January 14, 2015, by UPS 2nd day air delivery to the
address Respondent provided to OSHA on Respondent’s late notice of contest envelope, was
proper, (3) Respondent did not contest the method of service or Respondent’s actual receipt of
the citation, (4) the late notice of contest does not establish “excusable neglect” for the
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untimely filing under Federal Rule of Civil Procedure 60(b), and (5) Respondent did not raise a
meritorious defense to the citation in the late notice of contest.
In its late notice of contest, Respondent’s owner Jorge Tacuri simply states that he
wants to contest this case. Respondent does not state the reason for the late filing.
Respondent does not state its defenses to the violations alleged in the citation.
Discussion
Pursuant to section 10(a) of the Act, 29 U.S.C. § 659(a), after receipt of a citation, an
employer has “fifteen working days within which to notify the Secretary that he wishes to
contest the citation or proposed assessment of penalty.” If the employer fails to file a notice of
contest within the fifteen-day period, “the citation and the assessment, as proposed, shall be
deemed a final order of the Commission and not subject to review by any court or agency.”
In this case, the record discloses and I find that Respondent received the citation on
January 14, 2015, by UPS 2nd day air delivery. Respondent’s owner Jorge Tacuri and his wife,
Maria Tacuri, met with OSHA Assistant Area Director Young on January 29, 2015, for an
informal conference. The informal conference was conducted in Spanish. Respondent was
advised, in Spanish, that Respondent could contest the citation by sending a notice of contest
letter to the OSHA Albany Area Office by February 5, 2015. It is undisputed that Respondent
did not file a notice of contest on or before February 5, 2015. Therefore, Respondent’s late
notice of contest, postmarked on March 19, 2015 and received by the OSHA Area Office on
March 23, 2015 was untimely. Therefore, by operation of law, the citation and proposed
penalty must be deemed a final order of the Commission, unless Respondent can demonstrate
that it is entitled to relief.
An employer who has filed an untimely notice of contest may be granted relief under
Rule 60(b) in certain circumstances.6 George Harms Constr. Co. v. Chao, 371 F3d 156 (3d Cir.
In Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219 (2d Cir. 2002), the court concluded that the Commission
6
did not have jurisdiction to reopen a citation under Rule 60(b), due to a party’s inadvertence or excusable neglect,
once the citation was deemed a final order of the Commission pursuant to section 10(a) of the Act. In this case, the
Secretary does not contend that the Commission may not exercise jurisdiction based on Rule 60(b). Further, under
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2004). A late filing may be excused under Rule 60(b)(1) if the final order was entered as a result
of “mistake, inadvertence, surprise or excusable neglect.” A late filing also may be excused
under Rule 60(b)(3), if the late filing was caused by the Secretary’s “deception or failure to
follow proper procedures.” 7 See Branciforte Builders, Inc., 9 BNA OSHC 2113, 2116-17 (No. 80-
1920, 1981); B.J. Hughes, Inc., 7 BNA OSHC 1471, 1476 (No. 76-2165, 1979); Keppel’s Inc., 7 BNA
OSHC 1442, 1443-44 (No. 77-3020, 1979). Further, a late filing may be excused under Rule
60(b)(6), for any other reason that justifies relief, such as when “absence, illness, or a similar
disability prevent[s] a party from acting to protect its interests.” Branciforte Builders, 9 BNA
OSHC 2113, 2116-17. It is the moving party’s burden to show that it is entitled to Rule 60(b)
relief. See Burrows Paper Corp., 23 BNA OSHC 1131 (No. 09-1559, 2010); Elan Lawn and
Landscape Serv., Inc., 22 BNA OSHC 1337, 1338 (No. 08-0700, 2008).
A party seeking relief under Rule 60(b)(6) “must show ‘extraordinary circumstances’
suggesting that the party is faultless in the delay.” Where a party is partly to blame for the
delayed filing, relief from the final order must be sought under Rule 60(b)(1) and the party’s
neglect must be excusable. See Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S.
380, 393 (1993) (Pioneer). In this case, the citation was received by Respondent on January 14,
2015. Respondent met with the OSHA Assistant Area Director regarding this citation on January
29, 2015, during which the contest method and contest deadline were explained to
Respondent, in Spanish. Thereafter, Respondent delayed for seven weeks to write and mail the
late notice of contest, dated March 17, 2015, postmarked March 19, 2015. Respondent has
provided no explanation for the delay in filing its notice of contest. Therefore, Respondent is
not entitled to relief under Rule 60(b)(6). The undersigned thus regards Respondent’s late
notice of contest to be a request for relief under Rule 60(b)(1), due to “excusable neglect.”
In regard to Respondent’s request for relief because the late filing was due to
“excusable neglect,” the Commission applies the equitable analysis stated by the Supreme
either the Commission precedent set out below or the Second Circuit’s Russell P. Le Frois Builder decision, the
result is the same.
7
Rule 60(b)(3) provides that relief from a final order may be granted where there is fraud, misrepresentation, or
misconduct by an opposing party. In this case, there is no allegation that the Secretary or his representatives misled
Respondent as to the notice of contest filing deadline.
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Court in its Pioneer decision. This analysis takes into account “all relevant circumstances” and
includes consideration of (1) the danger of prejudice to the opposing party, (2) the length of the
delay and its potential impact on the proceedings, (3) the reason for the delay, including
whether it was within the reasonable control of the party seeking relief, and (4) whether the
party seeking relief acted in good faith. Northwest Conduit Corp., 18 BNA OSHC 1948, 1950
(No. 97-851, 1999), quoting Pioneer, 507 U.S. at 395.
In evaluating whether the late filing of a notice of contest was due to excusable neglect,
the Commission has found a “key factor” to be “the reason for the delay, including whether it
was within the reasonable control of the movant.” CalHar Constr., Inc., 18 BNA OSHC 2151,
2153 (No. 98-367, 2000). In appropriate circumstances, the Commission has held this to be the
dispositive factor. Id.; A.W. Ross, Inc., 19 BNA OSHC 1147, 1149 (No. 99-945, 2000). The
Commission has held that “[e]mployers must maintain orderly procedures for handling
important documents,” and that when the lack of such procedures results in the untimely filing
of a notice of contest, Rule 60(b) relief is not warranted. A.W. Ross, Inc., 19 BNA OSHC at 1149;
Louisiana-Pacific Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989).
In this case, Respondent prepared and filed a very brief late notice of contest, without
explanation for the filing delay, without discussion of Respondent’s defenses to the violations
alleged in the citation. Respondent’s late notice of contest does not dispute that Respondent
received the citation on January 14, 2015. Respondent’s late notice of contest does not dispute
that Assistant Area Director Young explained to Respondent’s owner, Mr. Tacuri, in Spanish, the
notice of contest method and deadline, at the January 29, 2015 informal conference.
Thereafter, since April 10, 2015, Respondent has failed to participate in this proceeding in any
manner. Respondent has not returned voice mail messages left by the Assistant Area Director,
in Spanish, or by the undersigned Judge’s legal assistant. Respondent has not provided the
Commission or the Secretary with its current address and contact information.
Ensuring the timely management and processing of important business documents,
such as the citation received in this case, is within the employer’s reasonable control. See
CalHar Constr., Inc., 18 BNA OSHC at 2153; J.F. Shea Co., 15 BNA OSHC 1092, 1093 (No. 89-
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0976, 1991)(relief denied where the error in timely handling the citation occurred in the
employer’s own office). Maintenance of orderly procedures for handling important documents
is clearly within the reasonable control of Respondent. I conclude that this factor is dispositive
and that there is no justification for granting Rule 60(b) relief in this case.
Finally, the Commission has held that the moving party must allege a meritorious
defense to be eligible for Rule 60(b) relief. See Northwest Conduit Corp., 18 BNA OSHC at 1952.
In the late notice of contest, Respondent does not allege a meritorious defense to the citation.
Decision
Respondent has failed to provide its current address and contact information to the
Commission or to the Secretary, a party to this proceeding. Therefore, pursuant to
Commission Rule 6, Respondent is deemed to have waived his right to notice and service under
the rules.
I find that Respondent has been given proper notice of this proceeding and the
opportunity to participate. I find that Respondent has failed to participate in this proceeding
and abandoned Respondent’s notice of contest. I find Respondent in default.
Further, I find that Respondent’s notice of contest was untimely filed and that
Respondent has not demonstrated that it is entitled to relief under Rule 60(b). I conclude that
the reason for the untimely filing was within Respondent’s reasonable control and that this
factor is dispositive.
Based on the foregoing, the Secretary’s Supplemental Motion is Granted, Respondent’s
late notice of contest is Dismissed, and the citation issued on November 3, 2004 is Affirmed in
all respects.
SO ORDERED.
/s/
Dated: March 24, 2016 Honorable Carol A. Baumerich
Washington, D.C. Judge, OSHRC
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